Latest / Crime Stories with Nancy Grace / Genetic Genealogy Links Kohberger to Murders: Should Genealogy Details be Released?

Transcript

Genetic Genealogy Links Kohberger to Murders: Should Genealogy Details be Released? · Crime Stories with Nancy Grace

0:05
Speaker 1: Crime Stories with Nancy Grace.
0:14
Speaker 2: A lot happening in the Brian Coburger case. Motions being
0:17
Speaker 2: filed left and right, the judge weighing them very carefully
0:22
Speaker 2: and usually not only ruling, but ruling along with a
0:26
Speaker 2: written memoranda. We have the motions at crime stories and
0:31
Speaker 2: crimeonline dot Com. Let's hear key motions and rulings critical
0:38
Speaker 2: to the prosecution of quadruple murder suspect Brian Coburger.
0:45
Speaker 3: In the District Court of the Second Judicial District of
0:48
Speaker 3: the State of Idaho and in for the County of Letah,
0:50
Speaker 3: State of Idaho, Plaintiff versus Brian C. Coburger, Defendant, case
0:54
Speaker 3: number c R two nine DASH two two DASH two
0:57
Speaker 3: eight zero five. Motion for Protective Order comes now the
1:00
Speaker 3: State of Idaho by and through the Leytaw County Prosecuting
1:03
Speaker 3: Attorney and respectfully moves the Court for a protective order
1:06
Speaker 3: pursuant to ICR sixteen one for information related to investigative
1:11
Speaker 3: genetic genealogy. This case arises from a quadruple homicide. Law
1:15
Speaker 3: enforcement found the DNA of a potential suspect at the
1:18
Speaker 3: crime scene, and the FBI submitted the DNA to one
1:21
Speaker 3: or more publicly available genetic genealogy services to determine potential
1:26
Speaker 3: relatives of the suspect. The FBI then used common genealogical
1:30
Speaker 3: techniques to develop a family tree leading to defendant. The
1:33
Speaker 3: state seeks to protect from disclosure the names and personal
1:36
Speaker 3: information of the hundreds of innocent relatives on the family tree,
1:39
Speaker 3: the names of the publicly available genetic genealogy services used,
1:43
Speaker 3: and certain h two other information described below. The disclosure
1:48
Speaker 3: of this information is not required by Rule sixteen of
1:50
Speaker 3: the Idaho Criminal Rules and should be protected from disclosure
1:53
Speaker 3: for the good cause described below, including the state's privilege
1:57
Speaker 3: to protect the identity of informers as described in IDOL
2:00
Speaker 3: Rule of Evidence five oh nine. Factual background. On November thirteen,
2:04
Speaker 3: twenty twenty two, law enforcement found the bodies of Madison Mogan,
2:07
Speaker 3: Kaylegan Zavez, Xana Cronodle, and Ethan Chapin at one one
2:11
Speaker 3: two two King Road in Moscow, Idaho. All four victims
2:14
Speaker 3: died from apparent knife wounds. Law enforcement found a k
2:18
Speaker 3: bar knife sheath on a bed next to the bodies
2:20
Speaker 3: of Madison and Kayley. The sheath was faced down and
2:23
Speaker 3: partially under both Madison's body and the comforter on the bed.
2:27
Speaker 3: Law enforcement seesed the kbar knife sheath pursuant to a
2:30
Speaker 3: search warrant. The Idaho State Police Lab in Meridian, Idaho
2:33
Speaker 3: located DNA on the k bar knife sheath. The ISP
2:37
Speaker 3: laboratory determined the DNA came from a single source and
2:40
Speaker 3: that the source was mail. Once law enforcement had single
2:43
Speaker 3: source DNA from the k bar knife sheath, they conducted
2:46
Speaker 3: what is called a short tandem repeat str analysis. STR
2:50
Speaker 3: DNA analysis involves looking at twenty regions within human DNA
2:55
Speaker 3: and allows law enforcement to make a direct comparison between
2:58
Speaker 3: two str DNA profile. Law enforcement submitted the str DNA
3:03
Speaker 3: profile obtained from the kbar knife sheath to the Combined
3:06
Speaker 3: DNA Index System CODIS, a database of str DNA profiles
3:10
Speaker 3: from convicted offenders, arrestees, and crime scene evidence. To identify
3:14
Speaker 3: the source of the DNA, no match was found. Unable
3:18
Speaker 3: to find a match using str DNA analysis, law enforcement
3:21
Speaker 3: decided to use investigative genetic genealogy to find a lead.
3:25
Speaker 3: Genetic genealogy allows individuals to trace page three their lineage
3:31
Speaker 3: or connect with unknown family members using DNA. Typically, it
3:34
Speaker 3: involves sending a DNA sample, such as a tube of saliva,
3:37
Speaker 3: to a genetic genealogy service like ancestry dot com or
3:41
Speaker 3: twenty three and meter. The genetic genealogy service then creates
3:45
Speaker 3: a single nucleotide polymorphism SNP profile to use for genealogical purposes.
3:51
Speaker 3: A SNP profile is different than str DNA profile and
3:56
Speaker 3: is used more often for genealogical purposes. The genetic genieology
4:00
Speaker 3: service then uses an algorithm to compare the user's SNP
4:04
Speaker 3: profile to SMP profiles submitted to the genetic genealogy service
4:08
Speaker 3: by other users to determine ancestry and potential relatives. The
4:12
Speaker 3: genetic genealogy service shares with the user a list of
4:15
Speaker 3: potential relatives and, depending on the specific genetic genealogy service,
4:19
Speaker 3: personally identifying information on those individuals, like their name, email address,
4:24
Speaker 3: and the amount of DNA the user shares with the
4:27
Speaker 3: potential relatives. The user does not receive any genetic information
4:31
Speaker 3: pertaining to other database users, ie users, DNA profiles are
4:35
Speaker 3: not shared with each other. This same process, used frequently
4:39
Speaker 3: by members of the public, can also be used by
4:42
Speaker 3: law enforcement as part of their investigation. A technique referred
4:45
Speaker 3: to as investigative genetic genealogy or IgG. Once a publicly
4:51
Speaker 3: available genetic genealogy service shows law enforcement potential relatives of
4:55
Speaker 3: the suspect, law enforcement applies traditional investigative and genial life
5:00
Speaker 3: logical methods to build a family tree in an effort
5:02
Speaker 3: to follow the tree to the suspect or a close
5:05
Speaker 3: relative of the suspect. Family trees can be used to
5:09
Speaker 3: narrow down a potential suspect based on factors such as age, gender, opportunity,
5:14
Speaker 3: known physical page four, characteristics of the suspect, etc. In
5:20
Speaker 3: this case, investigators used IgG to begin the process of
5:24
Speaker 3: developing a lead to the individual who left DNA on
5:27
Speaker 3: the k bar knife sheath. The Idaho State Police utilized
5:31
Speaker 3: a private laboratory to develop a SMP profile from the
5:35
Speaker 3: DNA on the kbar knife sheath. The private laboratory started
5:39
Speaker 3: using genetic genealogy to develop a family tree, but after
5:42
Speaker 3: law enforcement decided the FBI would take over, the private
5:46
Speaker 3: laboratory ceased its efforts and sent the SMP profile to
5:50
Speaker 3: the FBI. The FBI uploaded the SMP profile to one
5:54
Speaker 3: or more publicly available genetic genealogy services to identify possible
5:59
Speaker 3: family member of the suspect based on shared genetic data.
6:03
Speaker 3: The FBI could then view through the Genetic Genealogy Services
6:07
Speaker 3: portal information regarding potential relatives of the suspect who left
6:11
Speaker 3: DNA on the k bar knife sheath. Based on information
6:15
Speaker 3: the FBI could see in the Genetic Genealogy Service portal,
6:18
Speaker 3: the FBI went to work building a family trees of
6:21
Speaker 3: the genetic relatives to the suspect DNA left at the
6:24
Speaker 3: crime scene in an attempt to identify the contributor of
6:27
Speaker 3: the unknown DNA. The FBI built the family tree using
6:31
Speaker 3: the same tools and methods used by members of the
6:33
Speaker 3: public who wished to learn more about their ancestors. For example,
6:37
Speaker 3: the FBI consulted social media, viewed vital records such as
6:41
Speaker 3: birth and death certificates, and viewed other information already contained
6:45
Speaker 3: in the user portal for the Genetic Genealogy Service, including
6:49
Speaker 3: unverified information submitted by other users of the Genetic Genealogy Service.
6:54
Speaker 3: The FBI also consulted subscription based databases available to law
6:58
Speaker 3: enforcement for informationation on page five individual people. The product
7:04
Speaker 3: of the genealogy conducted by the FBI was a family
7:07
Speaker 3: tree that contained the name, birth date, and death date
7:11
Speaker 3: if applicable of hundreds of relatives as well as their
7:14
Speaker 3: familial connections between each other and the suspect, Brian C. Coburger.
7:19
Speaker 3: The FBI then sent to local law enforcement a tip
7:22
Speaker 3: to investigate defendant. The IgG process pointed law enforcement toward defendant,
7:27
Speaker 3: but it did not provide law enforcement with substantive evidence
7:31
Speaker 3: of guilt. The FBI did not, for example, conduct a
7:34
Speaker 3: direct comparison between the SNP profile from the k bar
7:38
Speaker 3: knife sheath and defendant's SMP profile. That type of direct
7:42
Speaker 3: comparison required the more traditional str DNA analysis, which was
7:46
Speaker 3: conducted by the Idaho State Police, not the FBI. Prior
7:50
Speaker 3: to the FBI's IgG efforts, the ISP Laboratory developed the
7:54
Speaker 3: traditional str DNA profile from the DNA found on the
7:58
Speaker 3: k bar knife sheath. After identification of defendant, law enforcement
8:02
Speaker 3: recovered trash from the home of defendant's parents, and ISP
8:05
Speaker 3: Laboratory did SDR DNA analysis of items from the trash
8:09
Speaker 3: for comparison to the unknown crime scene DNA. The comparisons
8:13
Speaker 3: indicated the DNA found on the trash belonged to the
8:16
Speaker 3: biological father of the individual who left the DNA on
8:20
Speaker 3: the k bar knife sheath pursuant to a search warrant.
8:23
Speaker 3: Law enforcement then collected DNA from defendant via a buckle swab.
8:27
Speaker 3: A traditional SDR DNA comparison was done between the SDR
8:31
Speaker 3: profile found on the k bar knife sheath and defendant's DNA.
8:35
Speaker 3: The comparison showed a statistical match Page six. Specifically, the
8:41
Speaker 3: str profile is at least five point three seven octillion
8:45
Speaker 3: times more likely to be seen if defendant is the
8:48
Speaker 3: source than if an unrelated individual randomly selected from the
8:52
Speaker 3: general population is the source. The genealogy conducted by the
8:56
Speaker 3: FBI resulted in a lead that pointed law enforcement to defendant,
8:59
Speaker 3: but it did not result in the creation of many
9:02
Speaker 3: documents or records. Much of the information relied on by
9:05
Speaker 3: the FBI was only viewed through the user portal in
9:08
Speaker 3: the publicly available Genetic Genealogy Service and other investigative databases.
9:13
Speaker 3: The FBI did not download or create copies of those records.
9:17
Speaker 3: Once defendant was in custody, the FBI removed the SMP
9:20
Speaker 3: profile from the Genetic Genealogy Service, pursuing the United States
9:24
Speaker 3: Department of Justice Interim Policy for Forensic genetic genealogy, DNA
9:28
Speaker 3: analysis and searching DOJ policy. This means the FBI no
9:32
Speaker 3: longer has access to use much of the information it
9:36
Speaker 3: used to create the family tree, and cannot view it
9:38
Speaker 3: again without resubmitting the SMP profile to the Genetic Genealogy Service.
9:44
Speaker 3: To the state's knowledge, the only records that reflect the
9:47
Speaker 3: FBI's efforts to create the defendant's family tree is the
9:51
Speaker 3: family tree itself, notes jotted down by FBI agents as
9:54
Speaker 3: they constructed the family tree, and any records created to
9:57
Speaker 3: document the removal of the SMP profile from the Genetic
10:01
Speaker 3: Genealogy Service pursuing to DOJ policy. The state has not seen,
10:06
Speaker 3: nor does the state possess these records or copies of
10:10
Speaker 3: these records. Argument, the state seeks a protective order for
10:14
Speaker 3: a narrow category of information, namely Page seven, information related
10:20
Speaker 3: to the use of IgG in this case. Idaho Criminal
10:24
Speaker 3: Rule sixteen governs discovery in criminal proceedings State versus Ish
10:30
Speaker 3: one sixty six Idaho four nine two five one oh
10:33
Speaker 3: twenty twenty. Rule sixteen is broad, but it is not
10:36
Speaker 3: a free for all. The rule contemplates the exchange of
10:39
Speaker 3: discrete categories of information between the state and the defense
10:43
Speaker 3: as relevant here. The rule contemplates the state will provide
10:47
Speaker 3: three discrete categories of information. Any material or information that
10:51
Speaker 3: would tend to negate the guilt of the accused CICR
10:55
Speaker 3: sixteen A. Any documents or objects that are material to the
10:59
Speaker 3: preparation of the day defense, intended for use by the
11:02
Speaker 3: prosecutor as evidence at trial, or were obtained from the
11:06
Speaker 3: defendant or belonged to the defendant ICR sixteen B four.
11:10
Speaker 3: And reports of scientific tests or experiments c ICR sixteen
11:15
Speaker 3: B five. If a defendant believes he should receive information
11:19
Speaker 3: that does not fall within one of the discrete Rule
11:21
Speaker 3: sixteen categories, the rule allows the defendant to seek an
11:25
Speaker 3: order from the court for information where the defendant can
11:28
Speaker 3: show a substantial need for the information and preparation of
11:31
Speaker 3: his case ce ICR sixteen B ten. Here, defendants served
11:36
Speaker 3: on State a request for discovery that calls for the
11:39
Speaker 3: IgG information, even though the IgG information falls outside of
11:43
Speaker 3: Rule sixteen without first obtaining an order from this court.
11:47
Speaker 3: The state now seeks, and the court should enter an
11:50
Speaker 3: order protecting the information related to the use of IgG.
11:54
Speaker 3: In this case, specifically, the state seeks to protect the
11:58
Speaker 3: following information raw data related to the SMP profile and
12:03
Speaker 3: the underlying laboratory documentation related to the development of the profile,
12:08
Speaker 3: such as chain of custody forms, laboratory standard operating procedures,
12:12
Speaker 3: analyst notes, et cetera. All information related to IgG efforts
12:17
Speaker 3: in creating a family tree and identifying defendant's potential relatives,
12:22
Speaker 3: including the identities of the genetic genealogy service services and
12:26
Speaker 3: the personally identifying information Page eight of defendance relatives. The
12:32
Speaker 3: state does not seek to protect and has or will
12:35
Speaker 3: disclose the following information. A genotype kit report from the
12:40
Speaker 3: private lab utilized by the Idaho State Police, which documents
12:44
Speaker 3: that a DNA test was performed. Information related to the
12:48
Speaker 3: str DNA analysis conducted using the DNA recovered from the
12:52
Speaker 3: k R knife sheath and the DNA recovered from defendants
12:55
Speaker 3: parents trash information related to the str DNA analysis conducted
13:00
Speaker 3: using the DNA recovered from the k BAR knife sheath
13:03
Speaker 3: and the DNA recovered from defendants via a bucle swab.
13:08
Speaker 3: This court should grant an order protecting the IgG information
13:12
Speaker 3: in this case because the IgG information does not fit
13:16
Speaker 3: into any of the discrete categories listed in Rule sixteen,
13:19
Speaker 3: and good cause exists to protect the information, including the
13:23
Speaker 3: need to protect the privacy of defendant's relatives. A. Rule
13:28
Speaker 3: sixteen A does not require the disclosure of the IgG
13:31
Speaker 3: information because the IgG information is not exculpatory. Rule sixteen
13:36
Speaker 3: A of the Idaho Criminal Rules does not require the
13:38
Speaker 3: disclosure of the IgG information because the IgG information does
13:43
Speaker 3: not tend to negate the guilt or reduce potential punishment
13:46
Speaker 3: of defendant. The rule requires the state to disclose any
13:50
Speaker 3: material or information in the prosecuting attorney's possession or control
13:53
Speaker 3: that tends to negate the guilt of the accused as
13:56
Speaker 3: to the offense charged, or that would tend to reduce
13:59
Speaker 3: the punishment for the offense. ICR sixteen A as written, this
14:04
Speaker 3: rule largely mirrors the federal Brady requirement that the state
14:07
Speaker 3: produced to a criminal defendant all material exculpatory information, But
14:11
Speaker 3: Rule sixteen A and Brady are limited to exculpatory information.
14:16
Speaker 3: They do not require the prosecutor to make page nine
14:19
Speaker 3: a complete and detailed accounting to the defense of all
14:22
Speaker 3: police investigatory work on a case. While the question of
14:25
Speaker 3: whether IgG information must be disclosed as exculpatory is one
14:30
Speaker 3: of first impression in Idaho courts, outside of Idaho have
14:33
Speaker 3: correctly decided that IgG information need not be disclosed as
14:37
Speaker 3: exculpatory see e. G. In the matter of Michael Green,
14:41
Speaker 3: ruling on motion to compel production of discovery attached here
14:44
Speaker 3: too as exhibit A. In Green, law enforcement used DNA
14:48
Speaker 3: recovered from the victim's nightgown to identify the defendant as
14:52
Speaker 3: a possible suspect see Green up to. Then they surreptitiously
14:56
Speaker 3: recovered items from the defendant's garbage that contained DNA and
14:59
Speaker 3: found through str DNA testing that the DNA in the
15:02
Speaker 3: defendant's garbage matched the DNA found on the victim's nightgown.
15:07
Speaker 3: As saliva tests then confirmed that the defendant's DNA matched
15:10
Speaker 3: the DNA on the victim's nightgown. The defendant moved to
15:13
Speaker 3: compel the disclosure of the IgG information. After an in
15:17
Speaker 3: camera hearing, the court denied the motion. The court explained,
15:21
Speaker 3: the evidence that is material to the defendant's guilt or
15:24
Speaker 3: innocence is the testing that followed the IgG investigation, which
15:28
Speaker 3: directly compared a fresh swab of the defendant's DNA with
15:32
Speaker 3: the DNA profile collected from the victim's nightgown. It is
15:36
Speaker 3: only this evidence that the People intend to present at trial.
15:40
Speaker 3: The People are not obligated to provide its preliminary search
15:43
Speaker 3: of the genealogy databases for possible matches, which is investigatory
15:47
Speaker 3: in nature and is not exculpatory or material to the
15:51
Speaker 3: defendant's defense. As this case illustrates, the State is not
15:54
Speaker 3: required to disclose the IgG information under REAL sixteen A
15:59
Speaker 3: because the IGGA information the state seeks to protect is
16:02
Speaker 3: not favorable to the defendant on the issue of guilt
16:04
Speaker 3: or punishment.
16:18
Speaker 1: Crime stories with Nancy Grace.
16:22
Speaker 3: Page ten. The information provided to local law enforcement by
16:25
Speaker 3: the FBI was nothing more than a tip, a lead
16:28
Speaker 3: for local law enforcement to follow up on, should they
16:31
Speaker 3: choose to. The genealogical tip did not prove or substantiate
16:35
Speaker 3: defendant guilt. Rather, the tip allowed local law enforcement to
16:38
Speaker 3: focus their investigation on defendant and obtain independent material evidence
16:42
Speaker 3: of his guilt, all of which the state has disclosed
16:45
Speaker 3: or will disclose. Specifically, with respect to DNA, an str
16:50
Speaker 3: DNA analysis found defendant's DNA matched the DNA collected from
16:53
Speaker 3: the k bar knife sheath to the extent that IgG
16:56
Speaker 3: information has an irrelevance. The fact that it led law
16:59
Speaker 3: enforcement to defendant means it is in culpatory rather than
17:03
Speaker 3: exculpatory in nature. Thus, Rule sixteen A does not require
17:07
Speaker 3: the disclosure of the IgG information because it is not
17:10
Speaker 3: relevant to and certainly not favorable to the defendant on
17:14
Speaker 3: the issue of guilt or punishment. B Rule sixteen B
17:18
Speaker 3: four does not require the disclosure of the IgG information
17:22
Speaker 3: because the IgG information does not satisfy any of the
17:25
Speaker 3: required criteria. The nature of the IgG information is such
17:29
Speaker 3: that its disclosure is not required under Rule sixteen B four.
17:33
Speaker 3: That rule requires the disclosure of books, papers, documents, photographs,
17:37
Speaker 3: tangible objects, and buildings or places only when they one
17:41
Speaker 3: are material to the preparation of the defense, two are
17:44
Speaker 3: intended for use by the prosecutor as evidence at trial,
17:48
Speaker 3: or three were obtained from the defendant or belonged to
17:51
Speaker 3: the defendant. ICR sixteen B four. The IgG information does
17:55
Speaker 3: not satisfy any of these criteria. First, the IgG information
18:00
Speaker 3: is not material to the preparation of the defense. Defendant
18:03
Speaker 3: is charged with killing four people, not with being related
18:06
Speaker 3: to a particular person. The mere fact that uploading the
18:09
Speaker 3: completed SMP profile into a publicly available genetic genealogy page
18:14
Speaker 3: eleven service led law enforcement relatives of defendant does not
18:18
Speaker 3: affect the strength of the evidence against him. The strength
18:21
Speaker 3: of the evidence against defendant in terms of DNA evidence
18:23
Speaker 3: depends upon the confirmatory results from the str DNA analysis
18:27
Speaker 3: between the defendant's DNA profile and the DNA recovered from
18:31
Speaker 3: the k bar knife sheath. As explained further below, the
18:34
Speaker 3: state intends to introduce the str DNA analysis at trial
18:38
Speaker 3: and does not intend to enter any evidence pertaining to
18:41
Speaker 3: the development of a SNP profile or the tree building
18:44
Speaker 3: process for inculpatory purposes. The state has disclosed or will
18:49
Speaker 3: disclose the information it has related to the str DNA
18:52
Speaker 3: analysis conducted in connection with this case. The immateriality of
18:57
Speaker 3: the IgG information to the preparation of the U S
19:00
Speaker 3: defense is perhaps best understood by way of analogy. The
19:03
Speaker 3: tip that came from the IgG process is no different
19:07
Speaker 3: than other types of technology hits that put law enforcement
19:10
Speaker 3: on the trail of a suspect. See United States versus Johnson,
19:13
Speaker 3: for example. In Johnson, law enforcement recovered to suspect's DNA
19:18
Speaker 3: from a ball cap left at the scene of a
19:20
Speaker 3: bank robbery. One law enforcement ran the DNA profile through
19:24
Speaker 3: cotis which resulted in multiple hits, including the defendant. A
19:27
Speaker 3: scientist narrowed down the hits to the defendant, and law
19:30
Speaker 3: enforcement confirmed it was the defendant's DNA after acquiring a
19:33
Speaker 3: bugle swab from the defendant. The defendant moved to compel
19:37
Speaker 3: the other codi's hits from the government, but the court
19:40
Speaker 3: denied his motion. The court explained that the DNA evidence
19:44
Speaker 3: material to the defense was the direct comparison between the
19:47
Speaker 3: DNA on the hat and the DNA taken directly from
19:50
Speaker 3: the defendant. The fact the defendant was first identified as
19:53
Speaker 3: a possible suspect based on a database search simply does
19:57
Speaker 3: not matter here. The IGGA information, like the initial code
20:01
Speaker 3: OF's hits in Johnson page twelve, is not material to
20:06
Speaker 3: the preparation of the defense because it only shows how
20:09
Speaker 3: defendant was first identified as a possible suspect. Moreover, the
20:13
Speaker 3: IgG information could not support an argument from defendant that
20:17
Speaker 3: law enforcement violated his Fourth Amendment rights by entering the
20:20
Speaker 3: DNA collected from the k bar knife sheath into a
20:23
Speaker 3: genetic genealogy service. A defendant cannot prove a violation of
20:27
Speaker 3: the Fourth Amendment without first showing he or she had
20:30
Speaker 3: a reasonable expectation of privacy in the place searched. State
20:34
Speaker 3: versus Man. The kbar knife sheath was abandoned at the scene,
20:38
Speaker 3: as was the DNA inside it. Defendant cannot show that
20:42
Speaker 3: he had a reasonable expectation of privacy in DNA left
20:45
Speaker 3: at the scene of a quadruple homicide, or in the
20:47
Speaker 3: genetic information of his relatives who voluntarily provided their own
20:50
Speaker 3: DNA to a genetic genealogy service Cepiro versus State, two
20:55
Speaker 3: thousand and eight, holding defendant did not have a reasonable
20:58
Speaker 3: expectation of privacy in wary water bottle from which officers
21:01
Speaker 3: recovered DNA, and observing that this Court has found no
21:05
Speaker 3: case holding that a reasonable expectation of privacy should be
21:08
Speaker 3: determined by a suspect's desire to keep his or her
21:11
Speaker 3: genetic identity private. Additionally, the sheath and defendant's DNA left
21:15
Speaker 3: on the sheath were seized pursuant to a valid search
21:18
Speaker 3: warrant issued by a magistrate judge, which means the law
21:22
Speaker 3: presumes that the search was reasonable. State versus Hutton. When
21:25
Speaker 3: a search is conducted pursued into a warrant, the burden
21:28
Speaker 3: of proof is on the defendant to show that the
21:30
Speaker 3: search was invalid. Second, the state did not rely on
21:34
Speaker 3: the IgG information to establish probable cause for defendant's arrest,
21:38
Speaker 3: did not present the IgG information to the grand jury,
21:41
Speaker 3: and has no plans page thirteen to present the IgG
21:46
Speaker 3: information for which protective order is sought, as evidence a trial. Instead,
21:50
Speaker 3: the state has relied on and will continue to rely
21:53
Speaker 3: on the str DNA analysis comparing Defendant's DNA to the
21:57
Speaker 3: DNA on the k bar knife sheath to establish defendant
22:00
Speaker 3: and its guilt. Again, the state has disclosed or will
22:03
Speaker 3: disclose information related to the str DNA analysis conducted in
22:07
Speaker 3: connection with this case. Third, the documents and tangible objects
22:11
Speaker 3: encompassed in the IgG information were not obtained from defendant,
22:15
Speaker 3: and defendant has no property interest in them. To the
22:18
Speaker 3: extent that DNA on the k bar knife sheet once
22:20
Speaker 3: belonged to defendent, he abandoned that DNA when he left
22:23
Speaker 3: it at the crime scene of a quadruple homicide. Defendant
22:27
Speaker 3: has never had a property interest in the records that
22:30
Speaker 3: reflect the SMP profile developed from the DNA on the
22:33
Speaker 3: k bar knife sheheet, nor has he ever had a
22:36
Speaker 3: property interest in the information gathered from the genetic genealogy
22:40
Speaker 3: service using the SMP profile, such as the information provided
22:44
Speaker 3: to the genetic genealogy service by defendant's relatives. In short,
22:48
Speaker 3: none of the IgG information the state seeks to protect
22:52
Speaker 3: came directly from defendant or currently belongs to defendant, and
22:56
Speaker 3: thus Rule sixteen B four does not require its disclosure.
23:00
Speaker 3: See Rule sixteen B five does not require the disclosure
23:04
Speaker 3: of the IgG information because the IgG information is not
23:08
Speaker 3: the result of a scientific test or experiment. Rule sixteen
23:12
Speaker 3: also requires the disclosure of information related to scientific experiments,
23:16
Speaker 3: but it only applies to limited information. Namely, Rule sixteen
23:21
Speaker 3: requires the disclosure of results or reports of scientific tests
23:25
Speaker 3: or experiments made in connection with the particular Page fourteen
23:31
Speaker 3: case ICR sixteen B five. The rule does not require
23:35
Speaker 3: the state to disclose what law enforcement does with the
23:38
Speaker 3: results or reports. Moreover, a process, procedure or investigative technique
23:43
Speaker 3: is not a scientific test or experiment merely because it
23:46
Speaker 3: involves the comparison of information or objects or requires the
23:49
Speaker 3: use of logic or reason c. State versus Matthews, nineteen
23:53
Speaker 3: eighty five. Holding an officer's comparison of two keys did
23:56
Speaker 3: not constitute a scientific test or experiment. Because it was
23:59
Speaker 3: merely an observation of similarity between two keys. There were
24:03
Speaker 3: two types of scientific tests conducted with respect to DNA
24:06
Speaker 3: that fall within the purview of Rule sixteen B five. First,
24:10
Speaker 3: law enforcement used str DNA analysis to compare the DNA
24:14
Speaker 3: on the k bar knife sheath to defendant's father and
24:17
Speaker 3: then two defendant. As required by Rule sixteen B five.
24:21
Speaker 3: The State has provided the reports from those scientific tests.
24:24
Speaker 3: The state also provided other information related to the str
24:28
Speaker 3: DNA analysis because the state plans on using that information
24:32
Speaker 3: at trial. Second, the private laboratory developed the SMP profile
24:36
Speaker 3: from the DNA on the k bar knife sheath. As
24:39
Speaker 3: required by Rule sixteen B five, The State will produce
24:42
Speaker 3: the report that documents the DNA test. Rule sixteen B
24:45
Speaker 3: five does not require the State to disclose how the
24:49
Speaker 3: SMP profile was used, and the genealogy the FBI conducted
24:53
Speaker 3: based on the DNA information does not constitute a scientific
24:56
Speaker 3: test or experiment. The FBI submitted defendants sca BE profile
25:00
Speaker 3: to one or more genetic genealogy services and were able
25:04
Speaker 3: to view potential relatives and access on verified data added
25:08
Speaker 3: by users in the genetic genealogy service. Starting with those
25:11
Speaker 3: potential relatives. The FBI engaged in traditional genealogy to put
25:15
Speaker 3: together a family tree that could lead them to the suspect.
25:19
Speaker 3: Putting together the family tree required the FBI to review
25:22
Speaker 3: sources Page fifteen, such as social media, publicly available databases,
25:27
Speaker 3: subscription based databases, vital records like birth certificates, census records,
25:32
Speaker 3: and historical newspapers. None of those actions can accurately be
25:36
Speaker 3: characterized as a scientific test or experiment. The product of
25:40
Speaker 3: the FBI's efforts was a family tree comprised of hundreds
25:43
Speaker 3: of defendant's relatives. Put simply, the family tree created by
25:47
Speaker 3: the FBI cannot accurately be described as the results or
25:50
Speaker 3: reports of scientific tests or experiments, and thus falls outside
25:54
Speaker 3: of Rule sixteen B five D. Good cause exist for
25:59
Speaker 3: this Court to enter an order protecting the IgG information,
26:03
Speaker 3: and if necessary, the Court should hold an in camera hearing.
26:07
Speaker 3: The mere fact that the IgG information does not fall
26:10
Speaker 3: within Rule sixteen is reason enough for this Court to
26:13
Speaker 3: enter an order protecting the IgG information. But the State
26:17
Speaker 3: is not seeking the protection of the IgG information as
26:20
Speaker 3: an exercise and obstinates. Instead, the state seeks to protect
26:23
Speaker 3: hundreds of innocent civilians from having their personal information, including
26:27
Speaker 3: their names, birth dates, and familial connections to the defendant
26:31
Speaker 3: in a high profile quadruple homicide from being disclosed. The
26:34
Speaker 3: disclosure of the IgG information risks harm not only to
26:38
Speaker 3: these indirect informants, but also to the genetic genealogy service
26:43
Speaker 3: used by the FBI and the IgG investigative technique. This
26:47
Speaker 3: court should follow the procedure laid out by Idaho's appellate
26:50
Speaker 3: courts to determine whether the IgG information must be disclosed
26:54
Speaker 3: Page sixteen one, Providing the IgG information would require the
26:59
Speaker 3: disclosure of the identity of informants and prejudice the state.
27:03
Speaker 3: The process used to collect IgG information required gathering information
27:08
Speaker 3: from several informants, including the genetic genealogy service to which
27:12
Speaker 3: the SMP profile was submitted, and indirectly from the relatives
27:16
Speaker 3: of defendant who hit on the SMP profile. Pursuing too,
27:20
Speaker 3: Rule sixteen, disclosure must not be required of an informant's
27:24
Speaker 3: identity unless the informant is to be produced as a
27:27
Speaker 3: witness at a hearing or trial. The state has no
27:30
Speaker 3: intent of presenting the IgG information for which a protective
27:34
Speaker 3: order is sought as evidence at trial, which means none
27:37
Speaker 3: of the IgG informants will be produced as witnesses at trial.
27:41
Speaker 3: The non disclosure of this information is consistent with the
27:44
Speaker 3: state's privilege to refuse to disclose the identity of a
27:47
Speaker 3: person who has furnished information relating to or assisting in
27:51
Speaker 3: an investigation of a possible violation of a law to
27:55
Speaker 3: a law enforcement officer. As a general matter, we protect
27:58
Speaker 3: the identity of informants use US Supreme Court has explained
28:01
Speaker 3: to encourage the flow of information concerning the commission of
28:04
Speaker 3: crimes to law enforcement McGray versus Illinois, nineteen sixty seven,
28:08
Speaker 3: such communications are discouraged if the informer's identity is disclosed.
28:12
Speaker 3: The Court's words, written long before SNP profiles were used
28:16
Speaker 3: for investigative purposes, apply with particular force to IgG information.
28:20
Speaker 3: Both the genetic genealogy services to which law enforcement agencies
28:24
Speaker 3: submit a suspect's SMP profile and the customers of those
28:27
Speaker 3: genetic genealogy services who may unknowingly be related to a suspect,
28:32
Speaker 3: would be less likely to make their information available if
28:35
Speaker 3: courts start requiring the disclosure of their information in criminal cases,
28:40
Speaker 3: especially in high profile criminal cases. See Green protecting IgG
28:45
Speaker 3: information in page seventeen, Part because the Court retains wide
28:50
Speaker 3: discretion to protect against the disclosure of information that might
28:54
Speaker 3: unduly hamper the prosecution or violate some other legitimate government interests.
28:58
Speaker 3: Number two, this Court should allow the process laid out
29:02
Speaker 3: by Idaho' appellate courts to determine whether the IgG information
29:06
Speaker 3: must be disclosed. Rule sixteen allows this Court to interaprotective
29:10
Speaker 3: order for good cause Icer sixteen one. If the Court
29:14
Speaker 3: finds it necessary to review evidence in camera to decide
29:17
Speaker 3: whether disclosure is required. The rule itself allows the court
29:20
Speaker 3: to do so. The rule expressly contemplates that, in deciding
29:24
Speaker 3: whether to interaprotective order, the Court may permit a party
29:27
Speaker 3: to show good cause by a written statement that the
29:30
Speaker 3: Court will inspect ex parte ice our sixteen one. If
29:34
Speaker 3: relief is granted, the court must preserve and seal the
29:38
Speaker 3: entire text of the party's statement ICR sixteen one. Thus,
29:42
Speaker 3: Rule sixteen standing alone provides this Court with the tools
29:46
Speaker 3: it needs to review evidence in camera if the Court
29:49
Speaker 3: decides it cannot interupt protective order. Based on this brief,
29:52
Speaker 3: Alan Idahos appellate courts have further explained the process district
29:56
Speaker 3: courts should use when faced with precisely this issue the
30:00
Speaker 3: need to protect both the state's interest and non disclosure
30:03
Speaker 3: of the identity of its informers and defendant's right to
30:06
Speaker 3: receive e sculptory information see State versus Wilson, two thousand
30:11
Speaker 3: and six. In Wilson, for example, the court explained that
30:14
Speaker 3: this situation calls for a two step process. First, the
30:18
Speaker 3: defendant must make a threshold showing that the informant may
30:21
Speaker 3: be able to give relevant testimony. If the defendant successfully
30:25
Speaker 3: makes that showing, an in camera proceeding then provides an
30:28
Speaker 3: opportunity for the state to show that the informist knowledge
30:31
Speaker 3: is not of such relevance that disclosures should be Page
30:35
Speaker 3: eighteen ordered. See also State versus Farlow, two thousand and seven,
30:39
Speaker 3: relying on Wilson to explain the same two step process.
30:42
Speaker 3: Once the trial court has concluded the defendant meets the
30:45
Speaker 3: initial threshold showing it must then conduct the in camera examination. Further,
30:50
Speaker 3: the Idaho Supreme Court has confirmed that it is desirable
30:54
Speaker 3: and proper to hold such an in camera hearing before
30:57
Speaker 3: ordering or denying disclosure Idaho nineteen ninety eight. Even if
31:03
Speaker 3: this Court finds that the IgG information falls within rule sixteen,
31:07
Speaker 3: this court should follow the guideposts that Idaho's appellate courts
31:11
Speaker 3: have planted for the protection of informants. Defendants should first
31:14
Speaker 3: be required to establish that the IgG information is in
31:18
Speaker 3: fact relevant to the charges against him. If he can
31:21
Speaker 3: do so, this Court should allow the State to present
31:23
Speaker 3: information at an in camera hearing for the Court to
31:26
Speaker 3: determine whether the IgG information must be disclosed, explaining the
31:30
Speaker 3: in camera presentation ordinarily may be made in the form
31:33
Speaker 3: of affidavits by allowing the trial court to examine witnesses
31:37
Speaker 3: as well. If the trial court deems it necessary conclusion
31:40
Speaker 3: based on the above, the State respectfully praised for the
31:43
Speaker 3: Court to enter in order protecting the IgG information from
31:46
Speaker 3: disclosure as it falls outside the purview of Rule sixteen.
31:50
Speaker 3: In the alternative, if the defense can establish the IgG
31:54
Speaker 3: information is in fact relevant, the State asks this Court
31:57
Speaker 3: to conduct the requisite in camera hearing from the State
32:00
Speaker 3: to present information related to the IgG information, and then
32:04
Speaker 3: enter a protective order under ICR sixteen to one that
32:07
Speaker 3: the IgG information is not subject to discovery and need
32:11
Speaker 3: not be disclosed by the State. Age nineteen respectfully submitted
32:15
Speaker 3: this twenty third day of June twenty twenty three, William W. Thompson,
32:19
Speaker 3: Junior Prosecuting Attorney, Jeff N. I, Special Assistant Attorney.
32:22
Speaker 1: General Crime Stories with Nancy Grace in the.
32:40
Speaker 3: District Court of the Second Judicial District of the State
32:43
Speaker 3: of Idaho, in and for the County of Latah, State
32:46
Speaker 3: of Idaho, Plaintiff versus Brian C. Coburger, Defendant, Case number
32:50
Speaker 3: c R two nine DASH two two DASH two A
32:52
Speaker 3: zero five objection to State's motion for protective order comes
32:57
Speaker 3: now Bryan C. Coburger, by and through his attorney J.
33:00
Speaker 3: Weston Logsdon, Chief Deputy Litigation and hereby objects to the
33:04
Speaker 3: State's motion for protective order filed June sixteen, twenty twenty three,
33:08
Speaker 3: on the grounds that the material the state seeks to
33:11
Speaker 3: hide is discoverable and must be provided to mister Coburger.
33:16
Speaker 3: Page two Factual background. On November thirteen, twenty twenty two,
33:20
Speaker 3: law enforcement responding to a nine to one one call,
33:23
Speaker 3: found Madison Mogen, Kayleigan Zavez, Xana Cernodle, and Ethan Chapin deceased.
33:28
Speaker 3: Law enforcement later found a k bar knife sheath placed
33:31
Speaker 3: next to Missmogan on her bed. The sheath was placed
33:34
Speaker 3: button side down and partially under Mismogan and the comforter.
33:38
Speaker 3: On November twenty, twenty twenty two, the Idaho State Police
33:41
Speaker 3: Lab in Meridian, Idaho, located DNA on the button of
33:45
Speaker 3: the sheath and performed STR analysis that led nowhere when
33:48
Speaker 3: ran through CODIS combined DNA index system, other than to
33:52
Speaker 3: show the provider was a male. By December seventeen, twenty
33:55
Speaker 3: twenty two, lab analysts were aware of two additional males
33:58
Speaker 3: DNA within the house where the deceased were located, and
34:01
Speaker 3: another unknown male DNA on a glove found outside the
34:04
Speaker 3: residence on November twenty, twenty twenty two. To this date,
34:08
Speaker 3: the defense is unaware of what sort of testing, if any,
34:11
Speaker 3: was conducted on these samples other than the STR DNA profiles. Further,
34:16
Speaker 3: these three separate and distinct male DNA profiles were not
34:19
Speaker 3: identified through CODIS, leading to the conclusion that the profiles
34:22
Speaker 3: do not belong to mister Coburger. While this was ongoing,
34:26
Speaker 3: police were investigating many various possible suspects, many of them
34:30
Speaker 3: provided DNA. At least one had his DNA surreptitiously taken
34:34
Speaker 3: from a discarded cigarette. Many also had their phones taken
34:37
Speaker 3: and downloaded. One area of the investigation had to do
34:41
Speaker 3: with the white sedan seen on a camera located at
34:44
Speaker 3: one one one two King Road, first glimpsed by officers
34:47
Speaker 3: on November eighteen, twenty twenty two. By November twenty five,
34:50
Speaker 3: twenty twenty two, police believed the car to be a
34:53
Speaker 3: white Alantra and ask law enforcement to be on the
34:55
Speaker 3: lookout for one. Precisely how the police came to believe
34:59
Speaker 3: the car was on a launch is still unknown. A
35:01
Speaker 3: report from an analyst for the FBI dated March twenty one,
35:04
Speaker 3: twenty twenty three, shows the analyst heavily relying on a
35:07
Speaker 3: video of a car heading in the wrong direction and
35:10
Speaker 3: at the wrong time on Ridge Road. Page three. The
35:14
Speaker 3: state's latest filing admits that somewhere within all of this,
35:18
Speaker 3: they engaged in investigative genetic genealogy using the DNA taken
35:23
Speaker 3: from the button on the sheath, and now claims that
35:26
Speaker 3: it was due to the use of this technique that
35:28
Speaker 3: it tipped local law enforcement to investigate mister Coburger. It
35:32
Speaker 3: remains unclear what the police first relied on in focusing
35:35
Speaker 3: their investigation on mister Coburger. No matter what came first
35:39
Speaker 3: the car or the genetic genealogy. The investigation has provided
35:43
Speaker 3: precious little. There is no connection between mister Coburger and
35:46
Speaker 3: the victims. There is no explanation for the total lack
35:49
Speaker 3: of DNA evidence from the victims in mister Coberger's apartment, office, home,
35:53
Speaker 3: or vehicle. In essence, through the lack of disclosure and
35:57
Speaker 3: their motion to protect the genetic genealogy investigation, the state
36:01
Speaker 3: is hiding its entire case argument. The state apparently thinks
36:05
Speaker 3: that they need not explain how they came to think
36:08
Speaker 3: that it was mister Coberger's DNA on the sheath. Presumably,
36:11
Speaker 3: the defense is expected to accept at face value that
36:14
Speaker 3: the sheefs had touched DNA, just waiting for testing by
36:17
Speaker 3: all the FBI's myriad resources. Additionally, the defense is to
36:21
Speaker 3: guess whether the state focused its investigation on mister Coburger
36:25
Speaker 3: via a bizarrely complex DNA tree experiment or through its
36:29
Speaker 3: faulty identification of the vehicle involved in this case. Perhaps unsurprisingly,
36:33
Speaker 3: mister Coburger does not accept that his defense does not
36:37
Speaker 3: need this information. It rather obviously falls within the ambit
36:41
Speaker 3: of Rule sixteen B four and five. A fact the
36:44
Speaker 3: state's briefing makes clear and its kitchen sink approach to
36:47
Speaker 3: their briefing. The State begins their argument claiming Rule sixteen
36:51
Speaker 3: has no interest in IgG testing, and then ends their
36:55
Speaker 3: argument claiming page four that somehow people will stop sharing
36:59
Speaker 3: their genetics if they were to realize the government is watching.
37:03
Speaker 3: Both arguments must fail to begin with the State apparently
37:07
Speaker 3: only once to prevent mister Coburger from seeing how the
37:10
Speaker 3: IgG profile was created and how many other people the
37:14
Speaker 3: FBI chose to ignore during their investigation. In essence, the
37:18
Speaker 3: State argues that if the later str testing is accurate,
37:22
Speaker 3: then there is no reason to concern ourselves with how
37:25
Speaker 3: the State came to investigate mister Coburger, states brief at nine.
37:29
Speaker 3: What the state's argument asks this court and mister Coberger
37:33
Speaker 3: to assume is that the DNA on the sheath was
37:36
Speaker 3: placed there by mister Coburger and not someone else, during
37:38
Speaker 3: an investigation that spans hundreds of members of law enforcement
37:42
Speaker 3: and apparently at least one lab the State refuses to name.
37:46
Speaker 3: Perhaps most puzzling is the state's argument that while Rule
37:49
Speaker 3: sixteen B five requires them to turn over the results
37:52
Speaker 3: or reports from scientific investigations, it does not require the
37:56
Speaker 3: state to disclose what law enforcement does with the results
37:59
Speaker 3: or reports, states brief at fourteen. First of all, that
38:04
Speaker 3: sounds like an admission that the information as to how
38:06
Speaker 3: the IgG was carried out should be disclosed. Second, what
38:11
Speaker 3: law enforcement does with results or reports is covered by
38:14
Speaker 3: Rule sixteen B six statements of prosecution witnesses and eight
38:18
Speaker 3: police reports. Frankly, the fact that members of the FBI
38:23
Speaker 3: are so concerned about permitting mister Coburger to know what
38:26
Speaker 3: they were up to with what was supposedly his DNA
38:29
Speaker 3: does not give one the impression that there is nothing
38:32
Speaker 3: to see here, as the State seems to imply. Finally,
38:35
Speaker 3: the States claim that ICR sixteen G two applies to
38:38
Speaker 3: this matter is quite bizarre. Presumably the independent company the
38:42
Speaker 3: government relied on was paid for its work and would
38:45
Speaker 3: stand by it in court. The State provides no real
38:48
Speaker 3: argument as to why the company needs to be protected.
38:51
Speaker 3: Mister Coburger is left to suspect they wish to keep
38:54
Speaker 3: their methods from being Page five questioned to the extent
38:58
Speaker 3: that there is some concern about intellectual property that can
39:01
Speaker 3: be addressed via a protective order that permits mister Coberger
39:04
Speaker 3: and his defense team to review their work. Second, the
39:07
Speaker 3: state appears to argue that everyone living on Earth that
39:11
Speaker 3: provides genetic information is a unaware that their DNA could
39:14
Speaker 3: be used by a government somewhere for something, and b
39:18
Speaker 3: is an informant within the meaning of the term in
39:21
Speaker 3: the rule. The state citations to cases involving actual informants
39:26
Speaker 3: hardly help it make this incredible leap. No court has
39:29
Speaker 3: ever found the existence of a DNA informant. It would
39:33
Speaker 3: appear that the state is acknowledging that the companies are
39:36
Speaker 3: providing personal information to the state, and that those companies
39:40
Speaker 3: and the government would suffer if the public were to
39:42
Speaker 3: realize it. The only two databases that allow access are
39:47
Speaker 3: ones that already inform their users, and those users can
39:50
Speaker 3: opt in to allow law enforcement searches. The statement by
39:54
Speaker 3: the government implies that the database is searched may be
39:57
Speaker 3: ones that law enforcement is specifically barred from, which explains
40:01
Speaker 3: why they do not want to disclose their methods. If
40:04
Speaker 3: the fact that the government is looking at the genetic
40:07
Speaker 3: information that people are sharing was it all an issue,
40:10
Speaker 3: then the state's very public acknowledgment of such investigations was
40:13
Speaker 3: clearly a big mistake. In any case, it is hard
40:16
Speaker 3: to understand why mister Coburger should be the one to suffer,
40:19
Speaker 3: because these companies on our government choose to either mislead
40:23
Speaker 3: or not educate the public. According to the Pew Research
40:26
Speaker 3: Center in February twenty twenty, forty eight percent of respondents
40:30
Speaker 3: thought it was acceptable to give their data to law
40:32
Speaker 3: enforcement to solve crime. Thirty three percent said no, and
40:36
Speaker 3: eighteen percent were unsure. James Halpin police use of forensic
40:40
Speaker 3: genealogy tech raises privacy concerns the citizen's Voice March twenty eighth,
40:44
Speaker 3: twenty twenty two. However, sixty percent thought their genetic information
40:50
Speaker 3: page six could not be shared with other companies. There
40:55
Speaker 3: is no federal law about the sharing of genetic information,
40:58
Speaker 3: but multiple states have begun regulating police use. Mister Coburger
41:02
Speaker 3: has reasons to be extremely suspicious of the IgG used
41:05
Speaker 3: in this case. Rather than seeing it as some sort
41:08
Speaker 3: of complex tree building that led to him, it appears
41:12
Speaker 3: far more like a lineup where the government was already
41:15
Speaker 3: aware of who they wanted to target. Rather than have
41:17
Speaker 3: the investigation done by someone blind to that fact, the
41:20
Speaker 3: FBI chose to do it themselves. This is akin to
41:23
Speaker 3: the police pulling in mister Coburger and five of his
41:26
Speaker 3: cousins off the street and then pointing at him. The
41:29
Speaker 3: only authority the state has in its favor that is
41:31
Speaker 3: on point is a trial court order from a Californian
41:34
Speaker 3: case that settled before it could lead anywhere. That decision
41:38
Speaker 3: relied on its people. Versus Johnson two thousand and six,
41:41
Speaker 3: the court in Johnson was not deciding whether a defendant
41:44
Speaker 3: had a right to know how he was identified, only
41:46
Speaker 3: that his identification could come in a trial without a
41:50
Speaker 3: mini trial about it. A better case on the issue
41:53
Speaker 3: is State versus Artiga. In this case, an appellate court
41:58
Speaker 3: heard similar arguments about the need for software used for
42:01
Speaker 3: facial recognition to be discovered to the defendant, though they
42:04
Speaker 3: would not be admitted at trial. The court, considering the matter, found,
42:08
Speaker 3: we are keenly aware the cases we have discussed involved
42:12
Speaker 3: instances concerning fry hearings and potential expert testimony, and that
42:16
Speaker 3: here we are dealing instead with eyewitnesses who have already
42:20
Speaker 3: identified the perpetrator, and the identification found admissible underweight. However,
42:25
Speaker 3: the facts of this case convince us defendant will be
42:28
Speaker 3: deprived of due process if he does not have access
42:32
Speaker 3: to the raw materials integral to the building of an
42:34
Speaker 3: effective defense. Page seven. The evidence sought here is directly
42:39
Speaker 3: tied to the defense's ability to test the reliability of
42:42
Speaker 3: the FRT. As such, it is vital to impeach the
42:46
Speaker 3: witness's identification challenge the state's investigation, create reasonable doubt, and
42:52
Speaker 3: demonstrate third party guilt. The frt's reliability has obvious implications
42:58
Speaker 3: for the accuracy of the identification process, because an array
43:03
Speaker 3: constructed around a mistaken potential match would leave the witness
43:07
Speaker 3: with no actual perpetrator to choose. The reliability of the
43:11
Speaker 3: technology bears direct relevance to the quality and thoroughness of
43:15
Speaker 3: the broader criminal investigation and whether the potential matches the
43:19
Speaker 3: software returned yielded any other viable alternative suspects To establish
43:24
Speaker 3: third party guilt. Defendants request for the identity design, specifications,
43:30
Speaker 3: and operation of the program or programs used for analysis,
43:34
Speaker 3: and the database or databases used for comparison are relevant
43:39
Speaker 3: to frt's reliability. At trial, the state will likely have
43:43
Speaker 3: the investigating officer explain the police investigation, including the process
43:49
Speaker 3: of retrieving the still photo from the surveillance cameras ultimately
43:53
Speaker 3: used to generate an image of defendant. Although we do
43:56
Speaker 3: not speculate regarding the exact nature of this testimony whether
44:00
Speaker 3: defendant will seek to impeach it, the fact that the
44:03
Speaker 3: state does not bear the burden of adducing testimony regarding
44:07
Speaker 3: the composition of the photo array does not bar the
44:10
Speaker 3: defense access to the discovery saw it. Mister Coberger finds
44:14
Speaker 3: himself in a similar position as mister Artiga. A massive
44:17
Speaker 3: investigation came to focus on him and him alone. The
44:21
Speaker 3: state appears to be trying to hide its original domino,
44:24
Speaker 3: such that he cannot discover why. Mister Coberger has a
44:28
Speaker 3: right to discover and question the investigation that led to him.
44:32
Speaker 3: This Court should so find dated this twenty second day
44:35
Speaker 3: of June twenty twenty three by Jay Logsdon, Chief Deputy
44:39
Speaker 3: Litigation Assigned Attorney.
44:41
Speaker 2: All of this legal maneuvering, motions being filed, decisions being made,
44:48
Speaker 2: the case on the docket for trial as the victim's
44:51
Speaker 2: families wait for their day in court. Nancy Gray's crime
44:58
Speaker 2: Story signing off, goodbye friend, you